Mugno or not to Mugno: The Senate Must Decide

As the sun sets on the 115th Congress and the mid-point of this term of the Trump administration, the sun also seems to be setting on any chance of seeing an Assistant Secretary for OSHA in the foreseeable future.

Or maybe not….

You may recall that former FedEx Ground safety director and Chamber of Commerce favorite Scott Mugno was nominated by President Trump in October 2017, has survived a Senate confirmation hearing and has been approved by the Senate Health, Education, Labor and Pension (HELP) committee (twice) on party-line votes. But Mugno’s nomination has never come to a final vote on the floor of the Senate.

Politico’s Morning Shift reminded us last week that the nomination of Mugno, as well as the nominations of Cheryl Stanton for the agency’s Wage and Hour Division, William Beach at the Bureau of Labor Statistics, and Gordon Hartogensis with the Pension Benefit Guaranty Corporation continue to be mired in a fight over the confirmation of two Democratic favorites: Mark Gaston Pearce to be reconfirmed for a seat on the National Labor Relations Board, and Chai Feldblum to be reconfirmed for a seat on the Equal Employment Opportunity Commission. (There are two other DOL nominees out there as well: John Pallasch for assistant secretary for employment and training was cleared by the Senate Committee last week, and Bryan Jarrett for assistant secretary for policy has not yet had a hearing. )

The business community (e.g. Chamber of Commerce and others) and their Republican cohorts in the Senate hate, Hate, HATE the idea of confirming Pearce and Feldblum more than they love the idea of having someone head the other labor agencies. The Chamber opposes Pearce because he “engineered some of the most harmful decisions and regulations in the Board’s history.” And even though he was only on the Board from 2010 to 2018, he somehow managed to reverse “more than 4,550 years of precedent,” causing King Tut to roll over in his sarcophagus. According to Bloomberg Law, the Republicans fear that Pearce will slow down their efforts to roll back worker protections that were strengthened under Obama. But their real worry is that if Trump is defeated in 2020, Pearce would be the likely candidate to become NLRB Chair — with the downfall of Western Civilization shortly to follow.

Chai Feldblum served as EEOC chair throughout the Obama administration and has been renominated by Trump. Her main sin is being an “open” lesbian and gay rights activist which is more important than the fact that she is a graduate of Harvard Law, clerked for Supreme Court Justice Harry Blackmun, and is a Georgetown Law School professor. Utah Senator Mike Lee is particularly incensed with Feldblum’s nomination, calling her a “threat to religious liberty and the institution of marriage.”

Senator Patty Murray, ranking member of the HELP committee reemphasized last week that Democrats would continue to block the Labor Department nominees until the Senate confirms Pearce and Feldblum.

Why did Trump renominate these candidates who threaten the American way of life?

Because the party controlled by the President gets three appointees to these Boards, while the minority party gets two. Traditionally, the parties get to put up their own candidates who are then nominated by the President. In other words, they’re traditionally a package. Technically, the Democrats can’t block the DOL nominees because the Republicans eliminated their ability to require 60 votes, but Democrats can force Senate Leader Mitch McConnell to consider the confirmation of each candidate separately (instead of as a package), which would take up an enormous amount of scarce Senate floor time that McConnell would rather use to confirm Trump’s judges and higher level nominees. If the nominees aren’t confirmed in the next couple of weeks before this session of Congress ends, the entire nomination process starts all over again.

So what will happen? Will the dam break next week? Rumors of high level talks between the Democrats, McConnell and the White House have been flying, but if I had a nickel for every time a deal was reported to be imminent……

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3 Comments

It might be useful to remind Mitch McConnell that that the current Deputy Secretary of Labor, Patrick Pizzella, was appointed to the Federal Labor Relations Board by President Barack Obama. So, a Republican ought to be able to nominate a Democrat—when the rules require it.